Adverse possession — Limitation Act 1980 — Third party erecting wall across part of appellant’s land — Whether appellant’s title to land barred by adverse possession — Appeal allowed in part
The appellant owned land adjoining that of a third party. The third party obtained planning permission for residential development of his land, subject to a condition, inter alia, that a wall should be erected along the boundary between the parties’ land. The land was later sold to a developer, who erected a number of houses on the site. At some point, the date of which was in issue, part of the appellant’s land had been enclosed, so that it formed part of the back gardens of several houses, one of which was subsequently purchased by the respondent.
A dispute arose concerning the ownership of the land. The solicitor to the Land Registry (the solicitor) found that the existing wall was the wall that had been erected by the third party. He ruled that all of the disputed land belonging to the appellant had been used by the third party, who had effectively excluded the whole world from it: on that basis, the appellant’s title to the land had been barred by adverse possession for the purposes of the Limitation Act 1980.
The appellant appealed. He maintained that the wall delineating the boundary was not the original wall, and that the claim to adverse possession was therefore defeated. He also argued that the solicitor had erred in finding that all the disputed land had been enclosed by the third party and treated by him as his land.
Held: The appeal was allowed in part.
1. The question of whether the existing wall was the original wall built by the third party had been decided by the solicitor on the basis of oral evidence adduced by the third party. It would have been contrary to principle for the appeal court to set aside that ruling. There was no reason for the solicitor to have doubted the witness’s veracity and, on the evidence, the appeal court would have reached the same conclusion. The wall had been erected as the third party maintained, and the land it enclosed had been used by him for the requisite period: on that ground the appeal was unsuccessful.
2. However, the wall had enclosed only part of the disputed land. The remainder of the land had been marked out by a line of trees but they did not serve to exclude the world to the benefit of the third party. No evidence existed to support the finding that the title to the rest of the disputed land had been barred by adverse possession. On that ground, the appeal was allowed.
Michelle Stevens-Hoare (instructed by Sheridans) appeared for the appellant; Christopher Morris-Coole (instructed by Morlings, of Maidstone) appeared for the respondent.
Vivienne Lane, barrister